SCALPEL, PLEASE: WHY THE DEFINITION OF HEALTH CARE ... · remain unsettled, and its case law will continue to fracture.13 The end result of this confusion is that the ambiguous definition

$Page 1: SCALPEL, PLEASE: WHY THE DEFINITION OF HEALTH CARE ... · remain unsettled, and its case law will continue to fracture.13 The end result of this confusion is that the ambiguous definition$
SCALPEL, PLEASE: WHY THE DEFINITION OF"HEALTH CARE LIABILITY CLAIM" IN

CHAPTER 74 OF THE CIVIL PRACTICE ANDREMEDIES CODE IS NOT AS CLEAN-CUT AS IT

COULD BE

Comment*

Jonathan D. Nowlint

I. INTRODUCTION ....................................... 1248II. LET'S TAKE A LOOK AT YOUR RECORDS: THE HISTORY OF

HEALTH CARE LIABILITY STATUTES IN TEXAS ....... ......... 1250A. Article 4590i of Vernon's Texas Revised Civil Statutes.......... 1250B. Chapter 74 of the Texas Civil Practice and Remedies Code.. 1253

III. SAY AHHH: A DEEPER LOOK AT ARTICLE 4590i'S ANDCHAPTER 74's DEFINITIONS OF "HEALTH CARE LIABILITYCLAIM" ............................................. 1257A. Article 4590i ...................... ................ 1257

1. Health Care Provider or Physician ............... 1 2582. Medical Care or Health Care or Safety ....... ....... 1258

B. Chapter 74............................... 12591. Health Care Provider or Physician ............... 12602. Claimant ............................ ...... 12623. Medical Care, or Health Care, or Safety or

Professional or Administrative Services DirectlyRelated to Health Care..... ................... 1263

IV. DIAGNOSIS: THE EMERGENCE OF THE "SAFETY AMBIGUITY"...... 1264V. THE SIDE EFFECTS OF UNCERTAINTY: How THE "SAFETY

AMBIGUITY" CAN CAUSE PROBLEMS THAT CHAPTER 74 WASDESIGNED TO PREVENT ................................... 1265

VI. SEEKING A SECOND OPINION: HOW THE TEXAS SUPREMECOURT'S INTERPRETATION OF ARTICLE 4590i's "SAFETYAMBIGUITY" OFFERS GUIDANCE FOR THE INTERPRETATION OFCHAPTER 74's "SAFETY AMBIGUITY" ............ .......... 1268A. Statutory Construction ...................... ..... 1 268

* Selected as the Book 4 Outstanding Student Article by the Volume 43 Board of Editors. Thisaward, made possible through the generosity of Orgain, Bell & Tucker, L.L.P., was presented to theauthor, Jonathan Nowlin at the Texas Tech Law Review's annual spring banquet.

t B.B.A. Management, Texas A&M University, Mays Business School, 2009; J.D. Candidate,Texas Tech University School of Law, 2012.

1247

TEXAS TECH LAW RE VIEW

B. Texas Supreme Court Weighs In ...................... 1269VII. LEGISLATIVE INTENT OR A DOCTOR'S HANDWRITING?: WHY

THE LEGISLATURE'S INTENT BEHIND CHAPTER 74's DEFINITIONOF "HEALTH CARE LIABILITY CLAIM" IS UNCLEAR ...... ..... 1270A. Did the Legislature Intend for Chapter 74 to Have a

Broad or Narrow Reach?.. .................. ....... 1271B. Changes from Article 4590i to Chapter 74 as an Indication

ofLegislative Intent............................. 1274VIII. THE PRESCRIPTION: CURES FOR CLARIFYING THE "SAFETY

AMBIGUITY" ......................................... 1278A. Leave the Definition Unchanged .................... 1278B. Clarify a Broad Interpretation of the Safety Ambiguity.......... 1279C. Remove the Word "Safety "from the Definition..... ..... 1280

IX. CONCLUSION. ................................... ..... 1283

I. INTRODUCTION

For some people, the term "medical malpractice" conjures up imagesof the most horrific kind: a surgeon operating on the wrong part of thebody; a physician reading the wrong patient's x-ray; or an infection arisingfrom surgical instruments left in the body. While these errors sound equallypainful, they also share another common trait: any reasonable person wouldagree that the injury in each case resulted from medical malpractice. Butmedical malpractice is not always the culprit in injuries that arise out of ahealth care provider's negligence.' Indeed, many cases against a healthcare provider walk a fine line between alleging common-law negligenceand medical malpractice.2 The importance in distinguishing a medicalmalpractice claim from a common law negligence claim begs twoquestions. First, why does the distinction make a difference? Second, ifthe distinction is important, what is the framework of analysis used todistinguish a medical malpractice claim from a non-medical malpracticeclaim?

The answers to both questions lie within Chapter 74 of the Texas CivilPractice and Remedies Code (Chapter 74). Entitled "Medical Liability,"Chapter 74 governs all medical malpractice claims in Texas.4 The Texas

1. See, e.g., Shults v. Baptist St. Anthony's Hosp. Corp., 166 S.W.3d 502, 505 (Tex. App.-Amarillo 2005, pet. denied) (holding that the patient's injury arising from a cut from a paint chip in thehospital's shower is a premises liability claim).

2. Compare Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010) (pluralityopinion) (holding that a hospital bed's footboard is "an integral and inseparable part of the heath careservices provided"), with Christus Health v. Beal, 240 S.W.3d 282, 291 (Tex. App.-Houston [1st Dist.]2007, no pet.) ("We hold, therefore, that the provision of a safe bed by Christus does not directly relateto Christus's treatment of Beal .... ).

3. TEx. Civ. PRAc. & REM. CODE ANN. § 74 (West 2011).4. See § 74.001(a)(13).

[Vol. 43:12471248

"HEALTH CARE LIABILITY CLAIM"

Legislature created Chapter 74 in 2003 in response to a "medicalmalpractice insurance crisis" sweeping through the state.s Chapter 74'sprovisions are designed to filter frivolous claims from meritoriousmalpractice claims by requiring that plaintiffs subject to Chapter 74 followcertain statutory procedures prior to trial.6 In addition, Chapter 74 includesa damages cap that limits a plaintiffs recovery upon a successful juryverdict.7 Because of these requirements and limitations, it is no surprisethat often the most contentious issue in litigation involving a health careprovider is whether Chapter 74 applies to the underlying claim.8

Chapter 74 does not actually employ the term "medical malpractice";instead, it governs claims that fall within its definition of "health careliability claim."9 Unfortunately, this definition contains ambiguouslanguage, and the Texas Supreme Court has yet to rule on how thedefinition should be interpreted. 0 To further complicate the dilemma,Chapter 74's precursor, Article 4590i of Vernon's Texas Revised CivilStatutes (Article 4590i), has a history of case law interpreting its definitionof "health care liability claim."" But because Chapter 74's definition is notexactly the same, some courts have held that Article 4590i's case law is notcontrolling.12 Without more clarification from the legislature, theinterpretation of Chapter 74's definition of "health care liability claim" willremain unsettled, and its case law will continue to fracture.13 The end resultof this confusion is that the ambiguous definition will create, andexacerbate, the very problems that Chapter 74's provisions were designedto prevent.14

5. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5), 2003Tex. Gen. Laws 847, 884.

6. See Casey L. Moore, Note, "In the Wake of the Rose" and "Life After Romero ": The Viabilityof a Cause of Action for Negligent Credentialing in Texas in Light of Recent Texas Supreme CourtDecisions, 58 BAYLOR L. REv. 549, 558-59 (Spring 2006) (stating that Chapter 74's requirements makeasserting a health care liability claim a "more tedious task for plaintiffs").

7. TEx. Civ. PRAC. & REM. CODE ANN. §§ 74.301-303.8. See generally Glen M. Wilkerson et al., Analysis of Recent Attempts to Assert Medical

Negligence Claims "Outside" Texas's Article 4590i, 20 REv. LITIG. 657, 664-79 (2001) (discussing thevarious techniques plaintiffs use to circumvent Chapter 74's precursor, Article 4590i).

9. § 74.001(a)(13).10. See Appell v. Muguerza, 329 S.W.3d 104, 114 (Tex. App.-Houston [14th Dist.] 2010, pet.

filed). The Texas Supreme Court recently had the opportunity, but declined, to resolve this issue inYamada v. Friend, No. 08-0262, 2010 WL 5135334, at *3 n.2 (Tex. Dec. 17, 2010), stating, "Ourdecision makes it unnecessary to consider whether the court of appeals properly construed [Chapter74's] language regarding breaches of accepted standards of safety."

11. Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2039-64, repealedby Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen.Laws 847, 884; see discussion infra Part VI.

12. E.g., Appell, 329 S.W.3d at 114 ("Therefore, cases regarding the construction of [Article4590i's definition] are not on point and do not govern the construction of the part of [Chapter 74'sdefinition] dealing with safety standards.").

13. See infra Part V.14. See infra Part V.

2011] 1249

TEXAS TECH LAW REVIEW

This Comment outlines the history of Article 4590i and Chapter 74.sPart II will describe the medical malpractice insurance crisis that developedin the years leading up to 2003, and it will highlight the history of HouseBill 4, which is the bill that created Chapter 74. Next, Part III will take acloser examination of Article 4590i's and Chapter 74's definitions of"health care liability claim." After examining the definitions, Part IV willintroduce the "safety ambiguity," which refers to the ambiguous languagewithin Chapter 74's definition that has caused the most confusion amongTexas courts. Part V will explain why this ambiguity, if not clarified, willcreate problems that Chapter 74 was designed to prevent. Next, Part VIexamines how the Texas Supreme Court dealt with the same ambiguouslanguage in Article 4590i. Part VII will discuss how the legislature's intentbehind Chapter 74's enactment does little to clarify the ambiguous languagewithin Chapter 74's definition. Part VIII will offer three simple ways thatthe legislature can clarify its ambiguous language. Part IX will concludethat, regardless of how the legislature decides to clarify the ambiguouslanguage, the point is that the legislature simply needs to act in order forChapter 74 to continue as an effective statute.

II. LET'S TAKE A LOOK AT YOUR RECORDS: THE HISTORY OF HEALTHCARE LIABILITY STATUTES IN TEXAS

Before analyzing the definition of "health care liability claim," it ishelpful to first understand Chapter 74's history. The events giving rise toits enactment and the shortfalls of the statute that it replaced shed light onthe goals the legislature contemplated for Chapter 74.I UnderstandingChapter 74's history also proves useful as courts attempt to extract meaningfrom its provisions by tracking the changes from Article 4590i to Chapter74.7

A. Article 4590i of Vernon's Texas Revised Civil Statutes

The codification of health care liability laws in Texas began in 1977with Chapter 74's precursor, Article 4590i of Vernon's Texas Revised CivilStatutes.' 8 Entitled the "Medical Liability and Insurance Improvement Act"(MLIIA), the Texas Legislature enacted Article 4590i in response to amedical malpractice insurance crisis that swept through Texas in the early

15. See infra Part II.16. See TEx. Gov'T CODE ANN. § 311.023(2) (West 2005) (stating that a court may consider the

"circumstances under which the statute was enacted" when construing a statute).17. See § 311.023(4) (stating that a court may consider the "common law or former statutory

provisions, including laws on the same or similar subjects" when construing a statute).18. Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2039-64 (repealed

2003).

1250 [Vol. 43:1247


1970s.19 The crisis emerged as a result of a number of factors, most ofwhich related to medical malpractice lawsuits within the state.20

For example, the legislature noted that from 1972 to 1977, "the[frequency] of health care liability claims . . . increased . . . inordinately." 21

In turn, the amounts "paid out by insurers in judgments and settlements ...likewise increased inordinately in the same short period of time."2 2 Thecrisis stung hospitals and physicians in the form of increased medicalprofessional liability rates, which are determined, in part, by the number ofhealth care liability claims filed.23 Hospitals and physicians did not absorbthe sting alone; the increased medical professional liability rates caused adirect increase in the cost of medical care to patients.24 In addition,defensive medicine increased the costs of medical care to patients andprivate insurers.25

The legislature expressed concern about the effect that increased healthcare liability claims and rising insurance premiums had on the availabilityof medical care in Texas.26 In contemplating Article 4590i, the legislaturestated, "this crisis has had a material adverse effect on the delivery ofmedical and health care in Texas, including significant reductions ofavailability of medical and health care services to the people of Texas and alikelihood of further reductions in the future."27 The legislature alsooutlined the relationship between medical care, insurance, and the law:

[T]he combined effect of the defects in the medical, insurance, and legalsystems has caused a serious public problem both with respect to theavailability of coverage and to the high rates being charged by insurers for

19. See TEX. Gov'T CODE ANN. § 1.02(a)(5) (West 2005); Michael S. Hull et al., House Bill 4 andProposition 12: An Analysis with Legislative History, Part Three, 36 TEX. TECH L. REv. 169, 218-19(2005) [hereinafter Hull et al., Part Three]. In 1975, the Texas Legislature created the Texas MedicalProfessional Liability Study Commission (Commission) to "study the health care liability crisis, exploresolutions, and report back to the 65th Legislature." Id. at 218-19. Chaired by tort law expert W. PageKeeton, the Commission consisted of "representatives from a variety of interests, including legislators,medical professionals and organizations, consumer unions, insurers, and the Texas Bar." Id. at 219.The Commission held meetings and conducted interviews to study the effects of the state's health careliability crisis. Id. After seventeen months of research, the Commission gave the legislature extensivetestimony about the Commission's findings, which formed the basis for many of Article 4590i'sprovisions. Michael S. Hull et al., House Bill 4 and Proposition 12: An Analysis with LegislativeHistory, Part One, 36 TEx. TECH L. REv. 1, 4 (2005) [hereinafter Hull et al., Part One].

20. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.02(a)(l)-(5), 1977 Tex. Gen. Laws2039, 2039-40 (repealed 2003).

21. Id. § 1.02(a)(1).22. Id. § 1.02(a)(3).23. Id. § 1.02(a)(2).24. Id. § 1.02(a)(8) ("[T]he direct cost of medical care to the patient and public of Texas has

materially increased due to [the] rising cost of malpractice insurance protection for physicians andhospitals in Texas.").

25. Id. § 1.02(a)(9). The Act does not define "defensive medicine"; however, the clause precedingthe term implies a definition: "services provided for protection against future suits or claims." Id

26. Id. § 1.02(a)(6).27. Id.

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medical professional liability insurance to some physicians, health careproviders, and hospitals. 28

When it passed in 1977, Article 4590i used the phrase "health careliability claim" instead of "medical malpractice" to define the claims thatfell within its ambit.2 9 If a claim fell within Article 4590i's definition of"health care liability claim," that claim was subject to its provisions, which,among others, included a statute of limitations for minors and a total civilliability damages cap of $500,000.30

In 1995, the legislature amended Article 4590i by adding arequirement that the plaintiff in a health care liability claim file an expertreport within 180 days of filing suit.31 Additionally, the amendmentmandated that a plaintiff file a cost bond of $5,000 for each health careprovider or physician defendant.32 The expert report was designed to createan "opportunity for meaningful review prior to the parties expendingsubstantial effort in discovery." 33 But courts rarely enforced the 180-dayrequirement, and the content of the expert report was hardly scrutinized.34

The upshot of the added provisions was that the cost-bond requirementsimply became "a procedural hurdle for plaintiff and defense lawyers toargue about," and the expert report failed to stand as a barrier for plaintiffsdetermined to bring claims against physicians or hospitals.

28. Id § 1.02(a)(1 1).29. See id. § 1.03(a)(4).30. Id. §§ 10.01 (statute of limitations), 11.02(a) (total civil liability cap), 11.03 (noneconomic

damages cap). The cap provision states, in pertinent part:(a) In an action on a health care liability claim where final judgment is rendered against aphysician or health care provider, the limit of civil liability for damages of the physician orhealth care provider shall be limited to an amount not to exceed $500,000.(b) Subsection (a) of this section does not apply to the amount of damages awarded on ahealth care liability claim for the expenses of necessary medical, hospital, and custodial carereceived before judgment or required in the future for treatment of the injury.

Id. § 11.02(a)-(b).31. Act of May 5, 1995, 74th Leg., R.S., ch. 140, 1995 Tex. Gen. Laws 985, 985-88, repealed by

Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen.Laws 847, 884. If the expert report was not timely furnished, Article 4590i called for dismissal of theplaintiff's claim. Id. § 1, sec. 13.0 1(e) ("If a claimant has failed, for any defendant physician or healthcare provider, to comply with [the expert report requirement] within the time required, the court shall,on the motion of the affected physician or health care provider, enter an order awarding as sanctionsagainst the claimant or the claimant's attorney: ... (3) the dismissal of the action of the claimant againstthat defendant with prejudice to the claim's refiling.").

32. Id. § 1, sec. 13.01(a)(1). In lieu of the bond, the plaintiff could place $5,000 cash in an escrowaccount for each health care provider or physician defendant. Id. § 1, sec. 13.01(a)(2). Additionally, theplaintiff could "file an expert report for each physician or health care provider with respect to whom acost bond has not been filed and cash in lieu of the bond has not been deposited under [the first twosubdivisions of subsection of 13.01(a)]." Id. § 1, sec. 13.01(a)(3).

33. Hull et al., Part One, supra note 19, at 5.34. Id.35. Id.

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2011] "HEALTH CARE LIABILITY CLAIM" 1253

In addition to amendments, Article 4590i faced many court challenges.Most notably, the Texas Supreme Court struck down as unconstitutionalboth Article 4590i's cap on damages for certain health care liability causesof actions and the statute of limitations for minors. The end result was astatute unable to protect the health care industry the way it was originallydesigned. Not only did court challenges render much of Article 4590i'sstrongest provisions moot, but plaintiffs increasingly found ways around theprovisions still intact by claiming exceptions to Article 4590i'sapplicability.38 By 2003, the need for a stronger health care liability statutebecame evident.39

B. Chapter 74 of the Texas Civil Practice and Remedies Code

During the years leading up to 2003, Article 4590i's shortfallsmanifested themselves in the grim outlook of the health care industry inTexas.40 Doctors began closing their practices or stopped performing high-risk procedures. 4 1 Hospitals discontinued certain services and nursinghomes across the state filed for bankruptcy.42 These health care providersall cited rising medical malpractice insurance premiums as the reason for

36. Id at 4. The Texas Supreme Court struck down the damages cap, in part, in Lucas v. UnitedStates. Lucas v. United States, 757 S.W.2d 687, 692 (Tex. 1988). The court deemed the capunconstitutional as it applies to common-law causes of actions. Id Thus, claims brought under thestate's wrongful death statute are still subject to Article 4590i's cap. See id The Texas Supreme Courtstruck down the statute of limitations for claims brought by minors in Weiner v. Wasson, 900 S.W.2d316, 320-21 (Tex. 1995). Chapter 74's damages cap circumvents Lucas through a state constitutionalamendment. See infra text accompanying note 53.

37. Hull et al., Part One, supra note 19, at 5.38. See id (discussing how plaintiffs circumvented Article 4590i's punitive damages cap); Hull et

al., Part Three, supra note 19, at 182 (noting that Article 4590i's definition of "health care provider" didnot use the word "including," causing some courts to view the list as exhaustive). But cf Wilkerson etal., supra note 8, at 658 (explaining how some plaintiffs succeeded in circumventing Article 4590icompletely, but to a large extent, "the court[s] rejected efforts by plaintiffs' to circumvent therestrictions of the statute by alleging causes that fall outside the scope of Article 4590i").

39. Hull et al., Part One, supra note 19, at 5.40. See id. at 10-31. The cause of the crisis culminating in 2003-and whether a crisis even

existed-was, and is, hotly contested. See id. at 21-30 (providing an overview of the arguments on bothsides). Compare D. Michael Wallach & J. Wade Birdwell, House Bill 4 After Five Years-A DefensePerspective, 44 THE ADvoc. (TEX.) 53, 53-69 (Fall 2008) (arguing that House Bill 4, five years after itsenactment, is successfully accomplishing the legislature's goals of decreasing medical malpracticeinsurance rates and increasing patient access to health care in Texas), with Paula Sweeney & Jim M.Perdue Jr., HB4-Medical Malpractice-Plaintiffs'Perspective, 44 THE ADVOC. (TEX.) 42, 42-52 (Fall2008) (refuting the contention that a health care crisis existed prior to 2003 and arguing that health careproviders in Texas are now a "constitutionally prohibited 'special class'), and Kathryn Zeiler, MedicalMalpractice Liability Crisis or Patient Compensation Crisis?, 59 DEPAUL L. REv. 675, 694 (Winter2010) ("Contrary to the common rhetoric heard during tort reform debates, evidence suggests that theconnection between the liability system and insurance markets is tenuous, which makes it unsurprisingthat tort reform has little to no impact on insurance markets.").

41. Hull et al., Part One, supra note 19, at 13.42. Id. at 18-19 (hospitals), 20-21 (nursing homes).


their actions.4 3 The decreasing number of health care providers, along withincreasing costs of medical care, threatened Texans' access to health care."

When the 78th Legislative Session began in 2003, legislators sought totackle the issue head-on.45 The evidence presented revealed a health caresystem in need of reform.4 Michael S. Hull, R. Brent Cooper, Charles W.Bailey, Donald P. Wilcox, Gavin J. Gadberry, and D. Michael Wallach(Hull et al.), in their analysis on House Bill 4 (H.B. 4), the bill that createdChapter 74, described the data presented to the legislature:

Data from the Texas State Board of Medical Examiners (BME) indicatedthat in 2003 over two thirds of the counties in the state did not haveobstetrician-gynecologists, a majority of the counties did not havepediatricians, and almost one third of the counties did not have familyphysicians. Hospitals and nursing homes faced substantial increases intheir liability insurance costs, which inhibited their ability to maintain orexpand needed health care to the communities they served.47

Similar to Article 4590i, the legislature declared a medical malpracticeinsurance crisis in Texas.48 H.B. 4 described the crisis using the samelanguage as Article 4590i; in short, it stated that "the crisis has had asubstantial impact on the physicians and hospitals of Texas and the cost tophysicians and hospitals for adequate medical malpractice insurance hasdramatically risen, with cost impact on patients and the public."49 Thelegislature resolved to fix the crisis with Chapter 74, which was designed toreduce the number of health care liability claims filed in Texas.soAdditionally, the legislature sought to "make affordable medical and healthcare more accessible and available to the citizens of Texas."s' After scoresof floor debates, Governor Rick Perry signed H.B. 4 into law in 2003.52H.B. 4 called for the repeal of Article 4590i, replacing it with Chapter 74.53

43. Seeid.at2l.44. Id. at 10-11; Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204,

§ 10.11(a)(6)-(8), 2003 Tex. Gen. Laws 847, 884.45. See Hull et al., Part One, supra note 19, at 2-3, 12.46. Id. at 3.47. Id. at 3 (internal citations omitted).48. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5), 2003

Tex. Gen. Laws 847, 884.49. Id. § 10.11(a)(7).50. Id. § 10.11(b)(1).51. Id. § 10.11(b)(5).52. Hull et al., Part One, supra note 19, at 5-7.53. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, §§ 10.01, 10.09,

2003 Tex. Gen. Laws 847, 864, 884. In addition to the passage of H.B. 4, the proponents of tort reformscored a victory when Texas voters amended the Texas Constitution to authorize the legislature to placedamage caps on health care liability claims. Wallach & Birdwell, supra note 40, at 54. The amendmentstates, in pertinent part, the following:

Notwithstanding any other provision of this constitution, the legislature by statute maydetermine the limit of liability for all damages and losses, however characterized, other than

[Vol. 43: 12471254


Chapter 74 applies to any claim arising on or after September 1, 2003.54 Ifa claim arose before September 1, 2003, Article 4590i's provisions apply."s

Because the legislature designed Chapter 74, in part, to reduce thefrequency of health care liability claims filed in Texas, Chapter 74 includesmany limitations that attach to claims that fall within its ambit.s6 Three ofthe most powerful limitations are a shortened statute of limitations, anexpert report requirement, and statutory caps on damages.

First, § 74.251 places a two-year statute of limitations, with a ten-yearstatute of repose, on health care liability claims:

(a) Notwithstanding any other law and subject to Subsection (b), no healthcare liability claim may be commenced unless the action is filed withintwo years from the occurrence of the breach or tort or from the date themedical or health care treatment that is the subject of the claim or thehospitalization for which the claim is made is completed; ... Except asherein provided this section applies to all persons regardless of minority orother legal disability.

(b) A claimant must bring a health care liability claim not later than 10years after the date of the act or omission that gives rise to the claim. Thissubsection is intended as a statute of repose so that all claims must bebrought within 10 years or they are time barred.58

Second, § 74.351 mandates that, "not later than the 120th day after thedate the claim was filed, [a claimant shall] serve on each party or the party's

economic damages, of a provider of medical or health care with respect to treatment, lack oftreatment, or other claimed departure from an accepted standard of medical or health care orsafety, however characterized, that is or is claimed to be a cause of, or that contributes or isclaimed to contribute to, disease, injury, or death of a person. This subsection applieswithout regard to whether the claim or cause of action arises under or is derived fromcommon law, a statute, or other law, including any claim or cause of action based orsounding in tort, contract, or any other theory or any combination of theories of liability. Theclaim or cause of action includes a medical or health care liability claim as defined by thelegislature.

TEX. CONsT. art. III, § 66(b). The proponents of tort reform sought this amendment to protect Chapter74's caps on damages from being stuck down as unconstitutional. Wallach & Birdwell, supra note 40,at 54. Prior to the passage of H.B. 4, the Texas Supreme Court held that Article 4590i's caps wereunconstitutional as applied to common-law personal injury actions; however, the court upheld the capsas applied to statutory claims, including survival and wrongful death actions. See id.

54. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 23.02, 2003 Tex.Gen. Laws 847, 898-99.

55. Id. § 23.02(d).56. See id. § 10.11(b)(1).57. See TEx. Ctv. PRAc. & REM. CODE ANN. §§ 74.251 (statute of limitations), 74.351 (expert

report), 74.301 (cap on noneconomic damages) (West 2011). Chapter 74 includes additional limitationsnot discussed in this Comment. These include a sixty-day notice to each defendant physician or healthcare provider before filing suit and compliance with discovery-procedure mandates. See id§§ 74.051(a), 74.352(a)-(h).

58. § 74.251(a)-(b). This section, however, has been declared unconstitutional in its application tominors. See Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App.-San Antonio 2005, pet. denied).

TEXAS TECH LA WRE VIEW [Vol. 43:1247

attorney one or more expert reports . . . ."' The expert report must provide"a fair summary of the expert's opinions . . . regarding applicable standardsof care, the manner in which the care rendered by the physician or healthcare provider failed to meet the standards, and the causal relationshipbetween that failure and the injury, harm, or damages claimed." 60 If theplaintiff fails to timely file an expert report, the defendant health careprovider or physician may move the court for a dismissal with prejudiceand ask for attorney's fees and costs of court.

Third, when Chapter 74 governs a cause of action, the damage awardsare subject to caps.62 For noneconomic damages against a health careprovider or physician, the liability is capped at "$250,000 for each claimant,regardless of the number of defendant physicians or health careproviders ... ."63 Noneconomic damages against a single health careinstitution are capped at $250,000 per claimant, and noneconomic damagesagainst multiple health care institutions cannot exceed $500,000 perclaimant.64

Needless to say, Chapter 74's sweeping provisions evoke a wide rangeof opinions. Proponents of tort reform hail H.B. 4 and Chapter 74'sprovisions as the fulfillment of the "promise of healing our health caredelivery system,"6 while critics label H.B. 4 a successful "politically drivenpublic relations campaign[] [aimed at] altering citizens' thinking and

59. TEX. Civ. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011).60. § 74.351(r)(6).61. § 74.35 1(b)(1)-(2). Even if a plaintiff files an expert report, the defendant may challenge the

adequacy of the report "if it appears to the court, after hearing, that the report does not represent anobjective good faith effort to comply with the definition of an expert report . . . ." § 74.35 1(1).

62. TEX. CIv. PRAC. & REM. CODE ANN. § 74.301(a) (West 2011).63. Id. Critics have challenged the constitutionality of Chapter 74's caps on noneconomic

damages in a class action lawsuit filed in federal court for the Eastern District of Texas in 2008. SeeWatson v. Hortman, 2:08-CV-81-TJW-CE, 2010 WL 3566736, at *1 (E.D. Tex. Sept. 13, 2010). In hisslip opinion, U.S. Magistrate Judge Charles Everingham IV held that the caps do not violate theplaintiffs' right of access to the courts, and the caps do not violate the Fifth Amendment's TakingsClause. See id. at *3, *6; Mary Alice Robbins, Challenge to H.B. 4's Cap on Non-Economic Damagesa No-Go in Eastern District of Texas Case, TEX. LAWYER BLOG (Sept. 15, 2010, 11:22 AM),http://texaslawyer.typepad.com/texas_1awyerblog/2010/09/challenge-to-hb-4s-cap-on-non-economic-damages-a-no-go-in-eastern-district-of-texas-case.html (discussing the slip opinion in Watson). ThisComment does not discuss the constitutionality and effects of statutory caps on damages. For adiscussion on the negative effects that noneconomic damages caps have on Texas attorneys and medicalmalpractice litigation in Texas, see generally Stephen Daniels & Joanne Martin, Texas Plaintiffs'Practice in the Age of Tort Reform: Survival of the Fittest -It's Even More True Now, 51 N.Y.L. SCH.L. REv. 285 (2006-2007) (arguing that plaintiffs' access to the courts in Texas has diminished becauseof the lack of willing representation, which is a function of attorneys' inability to remain profitable whenpursuing a case subject to a damages cap). But see Wallach & Birdwell, supra note 40, at 53-55(arguing that Chapter 74's damages cap, among other provisions, has positively affected the health careindustry and increased patients' access to health care in Texas).

64. TEX. Civ. PRAC. & REM. CODE ANN. § 74.301(b)-(c).65. Joseph M. Nixon, The Purpose, History and Five Year Effect of Recent Lawsuit Reform in

Texas, 44 ADVOC. (TEX.) 9, 18 (Fall 2008).

1256

2011] "HEALTH CARE LIABILITY CLAIM" 12579166judgments regarding tort damages, especially punitive damages. But

because of Chapter 74's requirements and limitations on claims that fallwithin its ambit, both plaintiffs and defendants have an interest in knowingwhether the claim at issue is a health care liability claim.

III. SAY AHHH: A DEEPER LOOK AT ARTICLE 4590i's AND CHAPTER 74'sDEFINITIONS OF "HEALTH CARE LIABILITY CLAIM"

At first blush, the definition of "health care liability claim" in Chapter74 does not appear significantly different from Article 4590i's definition.Although the two definitions are similar, their differing language carriesserious implications.69 Essentially, the legislature identified the shortfallsof Article 4590i's definition and made appropriate changes for Chapter74.70 The end result reveals that the legislature intended to expand thereach of Chapter 74, thereby subjecting more claims to its provisions.

A. Article 4590i

Article 4590i defines a health care liability claim as the following:

[A] cause of action against a health care provider or physician fortreatment, lack of treatment, or other claimed departure from acceptedstandards of medical care or health care or safety which proximatelyresults in injury to or death of the patient, whether the patient's claim orcause of action sounds in tort or contract.72

This definition can be broken down into three elements. First, thedefendant must be a health care provider or physician.74 Second, the claimmust arise out of the defendant's "treatment, lack of treatment, or some

66. Randall 0. Sorrels & Benny Agosto Jr., Effects of Punitive Damages Post HB4, 5 Years Later:Are Great Trial Lawyers Becoming Extinct In Texas?, 44 ADvoc. (TEx.) 84, 84 (Fall 2008).

67. See Wilkerson et al., supra note 8, at 658 (describing the vast number of case law opinionsinterpreting Chapter 74's precursor, Article 4590i). Generally, plaintiffs attempt to circumvent Chapter74's provisions, while defendant health care providers and physicians attempt to sweep all of the claimsagainst them under Chapter 74's purview. E.g. Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770,772, 775-76 (Tex. App.-Corpus Christi 2006, pet. denied) (denying hospital's claim that an injuryarising from a treadmill malfunction is a health care liability claim). But see Shults v. Baptist St.Anthony's Hosp. Corp., 166 S.W.3d 502, 504 (Tex. App.-Amarillo 2005, pet. denied) (affirmingdefendant health care provider's assertion that the underlying claim was not a health care liabilityclaim).

68. Compare Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4) (repealed 2003), withTEx. CIv. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2011).

69. See infra Part V.70. See Hull et al., Part One, supra note 19, at 5.71. See infra Part l.B.72. Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4) (repealed 2003).73. See Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010) (plurality opinion).74. Id.

TEXAS TECH LA WRE VIEW

other departure from accepted standards of medical care or health care orsafety.",7 Third, the defendant's error, omission, or departure mustproximately cause the patient's death or injury. The first two elementsinclude terms that are further defined by the statute.

1. Health Care Provider or Physician

To be a health care liability claim under Article 4590i, the claim mustallege a cause of action against a health care provider or physician.Article 4590i defines "health care provider" as "any person, partnership,professional association, corporation, facility, or institution duly licensed orchartered by the State of Texas to provide health care as a registered nurse,hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer,employee, or agent thereof acting in the course and scope of hisemployment."79 Because this definition does not employ the term"including," many courts interpreted this definition as an exhaustive list ofqualifying health care providers, which denied "many who mightprofessionally be considered health care providers . . . the benefits ofArticle 4590i."'0 The term "physician" means "a person licensed topractice medicine in the state."8'

2. Medical Care or Health Care or Safety

Once it is determined that the defendant is a health care provider orphysician, the claim must allege that the defendant's "treatment, lack oftreatment, or other claimed departure from accepted standards of medicalcare or health care or safety" proximately caused the plaintiffs injury ordeath.82 Because the terms within this phrase are separated by theconjunction "or," the phrase can be broken down further into prongs.

First, the plaintiff can claim that his or her injury resulted from thedefendant's act or omission-that is, the defendant's "treatment" or "lack oftreatment."8 3 Alternatively, the plaintiff can assert that the defendant'sdeparture from "accepted standards of medical care or health care or safety"

75. Id.76. Id.77. See infra Part II.A.1-2.78. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4) (repealed 2003).79. Id. § 1.03(a)(3).80. Russell G. Thornton, What Is a Health Care Liability Claim Under Texas Law?, 21 BAYLOR

UNIV. MED. CTR. PROCEEDINGS 342, 342 (2008), http://www.baylorhealth.edu/proceedings/21-3/21_3-thornton.pdf.

81. Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(8) (repealed 2003); see discussioninfra Part B.1.

82. Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4) (repealed 2003).83. Id.

[Vol. 43:12471258


caused the plaintiffs injury. 4 "Health care" means "any act or treatmentperformed or furnished, or which should have been performed or furnished,by any health care provider for, to, or on behalf of a patient during thepatient's medical care, treatment, or confinement."85 "Medical care" is thepractice of medicine "performed or furnished, or which should have beenperformed, by one licensed to practice medicine in Texas for, to, or onbehalf of a patient during the patient's care, treatment, or confinement." 86

The word "safety" is undefined by the statute.87

B. Chapter 74

Chapter 74 defines "health care liability claim" as the following:

"Health care liability claim" means a cause of action against a health careprovider or physician for treatment, lack of treatment, or other claimeddeparture from accepted standards of medical care, or health care, orsafety or professional or administrative services directly related to healthcare, which proximately results in injury to or death of a claimant,whether the claimant's claim or cause of action sounds in tort orcontract.88

Like Article 4590i, Chapter 74's definition can be broken down intothree elements.89 First, the defendant must be a health care provider orphysician. 90 Second, the claim must arise out of the patient's "treatment,lack of treatment, or other claimed departure from accepted standards ofmedical care, or health care, or safety or professional or administrativeservices directly related to health care."9' Third, the defendant's error,omission, or departure must proximately cause the claimant's death orinjury. 92

The notable changes from Article 4590i's definition to Chapter 74'sdefinition include the addition of the phrase "professional or administrativeservices directly related to health care" and the substitution of Article4590i's word "patient" with Chapter 74's word "claimant."93 The

84. Id.85. Id. § 1.03(a)(2).86. Id. § 1.03(a)(6).87. But see id. § 1.03(b) ("Any legal term or word of art used in this part, not otherwise defined in

this part, shall have such meaning as is consistent with the common law.").88. TEx. Civ. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2011) (emphasis added).89. See Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 327 (Tex. App.-San Antonio 2006, pet.

denied); Thornton, supra note 80, at 342 (outlining the elements of Chapter 74's definition of "healthcare liability claim").

90. § 74.001(a)(13).9 1. Id.92. Id.93. Compare Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4) (repealed 2003), with

TEx. CIv. PRAc. & REM. CODE ANN. § 74.001(a)(13).

2011] 1259


legislature implemented these changes to address loopholes that existedwithin Article 4590i's definition. 94 Specifically, parties circumventedArticle 4590i by pleading different legal theories that caused the parties'claims to fall outside the definition of health care liability claim.95 Chapter74's definition is designed to hinder these attempts. These changes andadditions will be explained further in the relevant sections below.

1. Health Care Provider or Physician

Like Article 4590i, the defendant in a health care liability claim underChapter 74 must be a health care provider or physician.9 7 Chapter 74employs expansive language in its definitions of "health care provider" and"physician" so that more defendants fall within its ambit.9 8 Chapter 74'sdefinition of "health care provider" is broken down into two subparts.99

Subpart (A) defines "health care provider" as the following:

[A]ny person, partnership, professional association, corporation, facility,or institution duly licensed, certified, registered, or chartered by the Stateof Texas to provide health care, including:

(i) a registered nurse;(ii) a dentist;(iii) a podiatrist;(iv) a pharmacist;(v) a chiropractor;(vi) an optometrist; or(vii) a health care institution.oo

The term "health care institution" is defined by Chapter 74 as the following:

"Health care institution" includes:(A) an ambulatory surgical center;(B) an assisted living facility licensed under Chapter 247, Health andSafety Code;(C) an emergency medical services provider;(D) a health services district created under Chapter 287, Health and SafetyCode;(E) a home and community support services agency;(F) a hospice;(G) a hospital;

94. See Hull et al., Part Three, supra note 19, at 176.95. See sources cited supra note 38.96. See Hull et al., Part Three, supra note 19, at 175-79.97. TEx. Civ. PRAc. & REM. CODE ANN. § 74.001(a)(13).98. See Hull et al., Part Three, supra note 19, at 182-85.99. See § 74.001(a)(12)(A)-(B).

100. § 74.001(a)(12)(A) (emphasis added).

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(H) a hospital system;(I) an intermediate care facility for the mentally retarded or a home andcommunity-based services waiver program for persons with mentalretardation adopted in accordance with Section 1915(c) of the federalSocial Security Act (42 U.S.C. Section 1396n), as amended;(J) a nursing home; or(K) an end stage renal disease facility licensed under Section 251.011,Health and Safety Code.10'

By adding the term "health care institution" to the definition of "health careprovider," the legislature expanded the scope of a health care liabilityclaim.102 In addition, Chapter 74's use of the words "including" and"includes" indicates that the lists within each definition are notexhaustive. 0 3 Because Article 4590i's definition of "health care provider"did not use the word "including," plaintiffs attempted to re-characterize thenature of the defendant so that the defendant did not fall within any of theenumerated types of health care providers listed in Article 4590i.' Ifsuccessful, the plaintiffs claim was not subject to Article 4590i'sprovisions. 05 But because of Chapter 74's expansive language, the court isnot bound by an enumerated list. 06

Subpart (B) to the definition of "health care provider" allows Chapter74 to reach beyond the actual health care entities and professionalsthemselves. 07 It states that a health care provider "includes: (i) an officer,director, shareholder, member, partner, manager, owner, or affiliate of ahealth care provider or physician; and (ii) an employee, independentcontractor, or agent of a health care provider or physician acting in thecourse and scope of the employment or contractual relationship."',08 Article4590i's equivalent language was much less expansive, applying only to "anofficer, employee, or agent thereof acting in the course and scope of hisemployment."' 09 The legislature created Chapter 74's subpart (B) andemployed its expansive language so that plaintiffs could not circumvent theapplicability of Chapter 74's provisions by directing lawsuits at specificindividuals or entities that did not fall within the definition of a "health careprovider.""t0

101. § 74.001(a)(1 1)(A)-(K).102. Hull et al., Part Three, supra note 19, at 182.103. See id.; Christus Health v. Beal, 240 S.W.3d 282, 286 (Tex. App.-Houston [1st Dist.] 2007,

no pet.).104. See Hull et al., Part Three, supra note 19, at 182.105. See Wilkerson et al., supra note 8, at 678-79.106. See Beal, 240 S.W.3d at 286.107. See TEX. CIv. PRAc. & REM. CODE ANN. § 74.001(a)(12)(B) (West 2011).108. Id.109. Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(3), 1977 Tex. Gen. Laws 2039, 2041

(repealed 2003).110. See Hull et al., Part Three, supra note 19, at 182-83.

2011] 1261

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The legislature also added language to the definition of the term"physician," which is defined as the following:

"Physician" means:(A) an individual licensed to practice medicine in this state;(B) a professional association organized under the Texas ProfessionalAssociation Act (Article 1528f Vernon's Texas Civil Statutes) by anindividual physician or group ofphysicians;(C) a partnership or limited liability partnership formed by a group ofphysicians;(D) a nonprofit health corporation certified under Section 162.001,Occupations Code; or(E) a company formed by a group of physicians under the Texas LimitedLiability Company Act (Article 1528n, Vernon's Texas Civil Statutes)."

Like Chapter 74's definition of "health care provider," the legislatureincluded additional language in the definition of "physician" so that moredefendants fall within its ambit; in turn, more claims fall within Chapter74's definition of "health care liability claim," which triggers theapplication of Chapter 74's provisions to the claim.'1 2 During debate aboutthe definition, the House considered keeping Chapter 74's definition ofphysician the same as Article 4590i's definition, which would haveexcluded partnerships and other entities from Chapter 74's reach." 3 Theamendment limiting the definition, however, was voted down.' 14

2. Claimant

Under Chapter 74, only a "claimant" can bring a health care liabilityclaim."' Chapter 74 defines "claimant" as "a person, including adecedent's estate, seeking or who has sought recovery of damages in ahealth care liability claim. All persons claiming to have sustained damagesas the result of the bodily injury or death of a single person are considered asingle claimant.""'6 Chapter 74's inclusion of the word "claimant" isdistinguishable from Article 4590i's use of the word "patient.""' In theircommentary on the enactment of Chapter 74, Michael S. Hull et al.identified the difference by stating the following:

111. § 74.001(a)(23)(A)-(E) (emphasis added).112. See Hull et al., Part Three, supra note 19, at 184.113. Id. at l85.114. Id.115. See § 74.001(a)(13).116. § 74.001(a)(2).117. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4), 1977 Tex. Gen. Laws 2039,

2041 (repealed 2003).

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In cases that involved claims brought pursuant to Chapter 74'spredecessor, Article 4590i, courts calculated damages on a per defendantbasis. Now, the limitations on damages found in Section 74.301, cappingnoneconomic damages, and 74.303, capping damages in wrongful deathand survival actions, each apply on a per claimant basis. As a result, thecaps effectively apply on a per occurrence basis. Most importantly, thelast sentence of the definition of "claimant" clearly encompasses theclaims of all potential plaintiffs claiming damages for a particular injury.Thus, any attempts to stack or multiply the claims by the number ofpotential plaintiffs or defendants should be precluded."t8

Thus, it is clear that the legislature substituted "patient" with "claimant" sothat Chapter 74's damages caps could be more effective at limitingdefendant health care providers' liability.'

Additionally, at least one court has held that Chapter 74's substitutionof the word "patient" with "claimant" demonstrates the legislature's intentto expand Chapter 74's reach beyond just patients.120 In Wilson N. JonesMemorial Hospital v. Ammons, the Fifth District Court of Appeals in Dallasheld that .' [p]atient' is not included within the definition of 'claimant' in[Chapter 74], as it was in [Article 4590i]."l2 1 It concluded further thatbecause the legislature used the word "including" in defining "claimant,"the legislature did not intend to "limit who can be claimants under[C]hapter 74 to a particular group." 2 2

3. Medical Care, or Health Care, or Safety or Professional orAdministrative Services Directly Related to Health Care

Chapter 74's definition of the terms "medical care" and "health care"are the same as Article 4590i's definitions. 123 Like Article 4590i, the word"safety" is undefined.12 4 Following the word "safety" is the phrase"professional or administrative services." 25 This phrase is defined inChapter 74 as "those duties or services that a physician or health careprovider is required to provide as a condition of maintaining the physician'sor health care provider's license, accreditation status, or certification to

118. Hull et al., Part Three, supra note 19, at 178.119. See id.120. See Wilson N. Jones Mem'1 Hosp. v. Ammons, 266 S.W.3d 51, 60-62 (Tex. App.-Dallas

2008, pet. denied).121. Idat6l.122. Id.123. Compare Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.03(a)(6), 1977 Tex. Gen. Laws

2039, 2041 (repealed 2003) (medical care), 1.03(a)(2) (health care), with TEX. CIV. PRAC. & REM. CODEANN. § § 74.001(a)(19) (medical care), 74.001(a)(10) (health care) (West 2011).

124. But see TEX. Civ. PRAc. & REM. CODE ANN. § 74.001(b) ("Any legal term or word of art usedin this chapter, not otherwise defined in this chapter, shall have such meaning as is consistent with thecommon law.").

125. § 74.001(a)(13).

2011] 1263


participate in state or federal health care programs."l 26 The legislature alsoadded the phrase "directly related to health care." 27 It is this phrase thathas caused the most confusion among courts about the interpretation ofChapter 74's definition of "health care liability claim."l 28

IV. DIAGNOSIS: THE EMERGENCE OF THE "SAFETY AMBIGUITY"

When analyzing whether Chapter 74 applies to a claim, thedetermination generally turns on the court's interpretation of the phrase"other claimed departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related tohealth care"--or simply put, the "departure phrase." 29 To aid in theinterpretation of the departure phrase, Chapter 74 includes definitions forthe terms "medical care," "health care," and "professional or administrativeservices."' 30 Although it does not define the word "safety," Texas courtshave generally agreed that safety means "secure from danger."i 1' Yet, evenwith specific definitions provided, confusion remains about how claimsshould be analyzed when they implicate the safety prong of the departurephrase.13 2

Specifically, when one party asserts that the underlying claim of thelawsuit alleges a departure from accepted standards of safety, the dilemmareduces to the following issue: To fall within the definition of "health careliability claim," must a claim assert a departure from accepted standards ofsafety in general or safety as the term relates to the provision of healthcare?33 For the remainder of this Comment, this dilemma is referred to asthe "safety ambiguity."

A representation of the safety ambiguity can be illustrated by breakingdown the departure phrase in two different ways. First, a broad reading ofthe safety ambiguity can be illustrated the following way:

126. § 74.001(a)(24).127. See § 74.001(a)(13).128. See discussion infra Part IV.129. E.g., Dual D Healthcare Operations, Inc., Inc. v. Kenyon, 291 S.W.3d 486, 488-89 (Tex.

App.-Dallas 2009, no pet.)130. See infra Part llI.B.3.131. E.g., Diversicare Gen. Partner v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005). Like Article 4590i,

Chapter 74 includes a provision for undefined terms. See TEx. Civ. PRAC. & REM. CODE ANN.§74.001(b) (West 2011) ("Any legal term or word of art used in this chapter, not otherwise defined inthis chapter, shall have such meaning as is consistent with the common law.").

132. Compare Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 774-75 (Tex. App.-CorpusChristi 2006, pet. denied) (holding that "directly related to health care" modifies "safety" within thedefinition of health care liability claim), with Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 328 (Tex.App.-San Antonio 2006, pet. denied) ("[A] claim may be a 'health care liability claim' under the safetydefinition even if it does not 'directly relate[ ] to healthcare."').

133. See Christus Health v. Beal, 240 S.W.3d 282, 288-89 (Tex. App-Houston [1st Dist.] 2007, nopet.); Stradley, 210 S.W.3d at 774-75.

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Other claimed departure from accepted standards of:(a) medical care, or(b) health care, or(c) safety or(d) professional or administrative services directly related to healthcare.

Second, a narrow reading of the safety ambiguity can be illustrated thefollowing way:

Other claimed departure from accepted standards of:(a) medical care, or(b) health care, or(c) safety or professional or administrative services directly relatedto health care.

These representations reveal that the resolution of the safety ambiguityturns on the issue of whether "directly related to health care" only modifies"professional or administrative services" or whether it modifies both"safety" and "professional or administrative services." 3 4 Because theTexas Supreme Court has yet to rule on the issue, the safety ambiguity iscreating problems for potential plaintiffs and health care providers.'3 5

V. THE SIDE EFFECTS OF UNCERTAINTY: How THE "SAFETY AMBIGUITY"CAN CAUSE PROBLEMS THAT CHAPTER 74 WAS DESIGNED TO PREVENT

The analysis involved in distinguishing a health care liability claimfrom a common-law negligence claim sometimes turns on excruciatinglysmall details.'3 6 These small distinctions, however, carry significantimplications. The expert report requirement and the statutory damage capsthat govern health care liability claims do not apply in general negligenceclaims.137 Because of the added cost of filing an expert report, along withthe knowledge that any favorable jury verdict is subject to a cap, plaintiffsgenerally attempt to circumvent Chapter 74's applicability by asserting thattheir claim does not fall within the definition of "health care liability

134. Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 281 (Tex. App.-Texarkana2008, pet. filed).

135. See infra Part V.136. See supra text accompanying note 2.137. See, e.g., Omaha, 246 S.W.3d at 287 (holding that plaintiffs "claims are not safety claims

directly related to health care .. . and not subject to the expert report requirements .... ); Stradley, 210S.W.3d at 775-76 (holding that plaintiffs claim was premises liability claim and "do[es] not constitute[a] health care liability claim[] under the statute").

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claim.""' Alternatively, defendant health care providers generally attemptto sweep all claims against them within Chapter 74's purview.'39 Bydefending claims within the confines of Chapter 74's provisions, health careproviders and their insurers benefit because they know that their exposureto liability is limited.14 0 Because of the implications that accompany theapplicability of Chapter 74, plaintiffs and defendants have a strong interestin knowing the reach of the definition of "health care liability claim."'41

When considering the interests from both sides, the problem of thesafety ambiguity magnifies further. For health care providers andphysicians, the safety ambiguity can lead to increased costs, which was oneof the very problems Chapter 74 was designed to prevent.142 Without aclear definition and consistent interpretation of "health care liability claim,"insurers cannot fully identify their exposure to risk.14 3 Because insurancepremiums "are a function of calculated risk," it follows that the uncertaintyof Chapter 74's reach will increase insurers' risk, which in turn will lead tohigher premiums owed by health care providers.'" In addition toaddressing insurance rate issues, the legislature also intended for Chapter 74to "make affordable medical and health care more accessible and availableto the citizens of Texas."l145 Because the safety ambiguity is currently asource of much litigation, it is reasonable to assume that health careproviders and their insurers are spending money in court that could be spentin other areas. 46 Specifically, the more money spent on litigation translatesinto less money that health care providers can spend on their operations,staff, and overall care.147

138. See Wilkerson et al., supra note 8, at 671 (labeling the provisions of Chapter 74's precursor,Article 4590i, "onerous" and explaining that "plaintiffs' counsel have made numerous attempts tocircumvent Article 4590i"). But see Shults v. Baptist St. Anthony's Hosp. Corp., 166 S.W.3d 502, 504(Tex. App.-Amarillo 2005, pet. denied) (affirming defendant health care provider's assertion that theunderlying claim was not a health care liability claim).

139. See, e.g., Stradley, 210 S.W.3d at 776 (defendant health care provider attempted to argue thatan injury arising out of a treadmill malfunction was a health care liability claim, to which the courtlabeled "absurd").

140. See Hull et al., Part One, supra note 19, at 7 (discussing the early positive effects of Chapter74 on the insurance industry in Texas).

141. See Thornton, supra note 80, at 342 (discussing the implications for both sides and, because ofthe interests involved, predicting that Chapter 74 will continue to be a source of legislative debate andlitigation).

142. See Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11 (b)(4),2003 Tex. Gen. Laws 847, 884 (stating that one of the goals of Chapter 74 is to "make available tophysicians, hospitals, and other health care providers protection against potential liability through theinsurance mechanism at reasonably affordable rates").

143. See In re Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 659 (Tex. 2005).144. Id.145. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(4), 2003

Tex. Gen. Laws 847, 884.146. See sources cited infra note 147.147. See Wallach & Birdwell, supra note 40, at 53-54 (describing how Chapter 74, five years after

its creation, has decreased medical malpractice insurance rates, which has given health care providers in

1266


Turning to the other side, the safety ambiguity leaves plaintiffs unsureabout the merit of their potential claim. In weighing the costs and benefitsof bringing an action that may or may not be subject to Chapter 74, aplaintiff's attorney may conclude that bringing the claim as a common-law-negligence cause of action is advisable, but bringing the claim underChapter 74 is not.148 Without an unambiguous definition of "health careliability claim" or a predictable expectation of how a court will interpret thedefinition, the plaintiffs attorney cannot advise the client with certaintyhow the claim will be identified.14 9 This could cause plaintiffs withmeritorious claims to forego the risk and decide against a lawsuitaltogether. 50 The end result is the aggravation of another one of theproblems that Chapter 74 was designed to prevent-that a claimant's rightswill not be unduly restricted "any more than necessary to deal with thecrisis."' 5'

In sum, the safety ambiguity has the ability to thwart many of the goalsenvisioned by the legislature when it created Chapter 74. In the long run,without clarification of the safety ambiguity, Chapter 74 will negativelyimpact all of the interests involved-that is, the interests of health careproviders, physicians, insurance companies, patients, and potentialplaintiffs.

Texas the ability to "expand their services to provide better patient care"). To be sure, Wallach andBirdwell concluded that Chapter 74 has drastically decreased medical malpractice rates in spite of thepresence of the safety ambiguity. See id But the upshot of the argument is that if the safety ambiguityno longer existed as a source of contention during litigation, then health care providers would have evenmore resources at their disposal to "make affordable medical and health care more accessible andavailable to the citizens of Texas." Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S.,ch. 204, § 10.11 (b)(4), 2003 Tex. Gen. Laws 847, 884.

148. See Daniels & Martin, supra note 63, at 298-319 (describing the effect of tort reform onplaintiffs' attorneys' business model).

149. See Sorrels & Agosto Jr., supra note 66, at 86 (describing how Chapter 74's damages cap "hasforced many attorneys to substantially alter the way they evaluate and accept their cases").

150. See id. at 86-87 (describing the decreasing number of cases pursued by plaintiffs in Texas).Critics attribute the decrease in the number of claims filed by plaintiffs to plaintiffs' attorneys'economics-that is, because of Chapter 74's limitations on punitive damages and because of the costs ofpursuing a claim subject to Chapter 74, it is simply economically unsound to pursue health care liabilityclaims. E.g., id. This assertion illustrates the point that plaintiffs' attorneys who are unsure aboutwhether a claim is subject to Chapter 74 might err on the side of declining representation simply becauseit is not economically feasible to take the risk with hopes that the claim will fall outside Chapter 74'sambit. See Daniels & Martin, supra note 63, at 316-20 (arguing that, because plaintiffs' attorneys inTexas can no longer profit from medical malpractice cases, plaintiffs' access to the courts isdiminished). But see Nixon, supra note 65, at 15 ("No one is precluded from filing a lawsuit. Thecourts of the state are still open.").

151. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11 (b)(3), 2003Tex. Gen. Laws 847, 884.


VI. SEEKING A SECOND OPINION: HOW THE TEXAS SUPREME COURT'SINTERPRETATION OF ARTICLE 4590i's "SAFETY AMBIGUITY" OFFERS

GUIDANCE FOR THE INTERPRETATION OF CHAPTER 74's "SAFETYAMBIGUITY"

The courts in Texas have had plenty of opportunities to hone theiranalysis skills on health care liability claims, or in the alternative, claimsthat purport to be health care liability claims. 152 Case law and statutory textguide courts in their endeavor to construe a statute. 5 3 Additionally, in thearea of health care liability claims, the Texas Supreme Court has weighedin, offering its analysis and interpretation of Article 4590i's safetyambiguity.15 4

A. Statutory Construction

When construing a statute, courts in Texas are guided by settledcommon-law and statutory principles of interpretation. Courts "look first tothe plain, simple, and unambiguous language of the statute" 55 to "try togive effect to legislative intent." 5 6 The Texas Government Code offersguidance as well. Not only does it direct courts to "diligently attempt toascertain legislative intent,"'s but it urges courts to be mindful of readingthe words and phrases in context and in accordance with the rules ofgrammar and common usage.' 8 Additionally, courts may consider "formerstatutory provisions, including laws on the same or similar subjects." 5 9

This guidepost is especially helpful when construing Chapter 74 because ofthe existence of its precursor, Article 4590i.16 0 The Texas Supreme Courthas ruled on Article 4590i's safety ambiguity, but questions remain aboutthe ruling's effect on Chapter 74.161

152. See Wilkerson et al., supra note 8, at 658 (noting the vast number of opinions addressingChapter 74's precursor, Article 4590i).

153. See infra Part VI.A.154. See infra Part VI.B.155. Omaha Healthcare Ctr. v. Johnson, 246 S.w.3d 278, 282 (Tex. App.-Texarkana 2008, pet.

filed) (citing City of San Antonio v. Tex. Attorney Gen., 851 S.W.2d 946, 951 (Tex. App.-Austin1993, writ denied)).

156. Id. (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999)).

157. TEx. Gov'T CODE ANN. § 312.005 (West 2005).158. Id. § 311.011(a).159. Id. § 311.023(4).160. Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2039-64 (repealed

2003).161. See infra Part VII.

1268 [Vol. 43:1247


B. Texas Supreme Court Weighs In

The Texas Supreme Court has opined that Article 4590i's safetyambiguity should be narrowly interpreted to mean safety as the term relatesto the provision of health care.162 This reasoning was first espoused inDiversicare General Partner, Inc. v. Rubio and later clarified in Marks v.St. Luke's Episcopal Hospital.163 Although Article 4590i's definition of"health care liability claim" is different from Chapter 74's, the court'sanalysis can be useful in analyzing the relevant factors to be consideredwhen construing Chapter 74's safety ambiguity.

In Diversicare, the court considered whether a claim against a nursinghome for failure to prevent one of its residents from sexually assaultinganother resident was a health care liability claim under Article 4590i.' 64

The court determined that the nursing home's decisions about residentsafety constituted health care, and thus, the underlying claim asserted adeparture from accepted standards of health care.16 Before concluding itsopinion, however, the court briefly mentioned that the claims may also "becharacterized as departures from accepted standards of safety."' 6 The courtstated that the legislature used the word "safety" in the definition of "healthcare liability claim" to extend the reach of Article 4590i "beyond what itwould be if it only covered medical and health care."l67 The court clarifiedthe extent of that reach five years later in Marks.6 1

In Marks, the plaintiff was recovering from back surgery in a hospitalbed.'6 9 As he attempted to stand up, he pushed off on the bed's footboard,which gave way under his weight. 170 He brought suit against the hospitalfor the injuries he sustained after falling to the ground. '" In addressing thesafety ambiguity, the Texas Supreme Court issued a plurality opinion,authored by Justice Medina, holding that "standards of safety must beconstrued in light of the other standards of medical and health care,standards that are directly related to the patient's care and treatment." 7 2

Justice Medina reached this conclusion after determining that thelegislature's purpose in enacting Article 4590i was to address the medicalmalpractice crisis in Texas, stating that "[t]his concern pervades the statute

162. See Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010) (plurality opinion).163. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005); Marks, 319 S.W.3d at

664.164. Diversicare, 185 S.W.3d at 845.165. Id. at 853.166. Id. at 855.167. Id.168. See Marks, 319 S.W.3d at 664.169. Id at 660.170. Id.171. Id172. Id. at 664.

2011] 1269

TEXAS TECHLAWREVIEW

which is replete with references to medical liability, health care, andmalpractice, all of which implicate medical or health care judgments madeby professionals." 7 3 Justice Medina concluded that the safety ambiguitymust directly relate to health care by reasoning that the legislature "couldnot have intended that standards of safety encompass all negligent injuriesto patients."l 74 The court concluded that the claim fell within Article4590i's ambit, holding that the injury resulted from a failure of a piece ofmedical equipment provided for Marks's recovery. 5 As such, it reasonedthat "[m]edical equipment specific to a particular patient's care or treatmentis an integral and inseparable part of the health care services provided." 7 6

The court's holdings in Diversicare and Marks are instructive insofaras they shed light on the relevant factors that lower courts should considerwhen deciding whether to broadly or narrowly interpret the safetyambiguity. The court based its holding in each case on what can be labeledbroadly as legislative intent."' Shifting this reasoning to Chapter 74, therelevant analysis appears simple, but it is filled with complexity: What wasthe legislature's intent behind Chapter 74, and how can comparing Article4590i and Chapter 74 shed light on how the legislature intended for thesafety ambiguity to be read?

VII. LEGISLATIVE INTENT OR A DOCTOR'S HANDWRITING?: WHY THELEGISLATURE'S INTENT BEHIND CHAPTER 74'S DEFINITION OF "HEALTH

CARE LIABILITY CLAIM" IS UNCLEAR

Following the Texas Supreme Court's lead, the Texas appellate courtsthat have interpreted Chapter 74's safety ambiguity have based theirreasoning on legislative intent.'78 Most of these courts have determinedthat, within the definition of "health care liability claim," the phrase"directly related to health care" modifies the term "safety." 79 Thisinterpretation rests on two conclusions. The first conclusion is that thelegislature could not have intended for Chapter 74 to reach as far as safety

173. Id. at 663.174. Id.175. Id.176. Id. at 664.177. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005); Marks, 319

S.W.3d at 664.178. E.g., Omaha Healthcare Ctr., L.L.C. v. Johnson, 246 S.W.3d 278, 282 (Tex. App.-Texarkana

2008, pet. filed)179. See St. David's Healthcare P'ship v. Esparza, 315 S.W.3d 601, 605 (Tex. App.-Austin 2010,

pet. filed); Dual D Healthcare Operations, Inc. v. Kenyon, 291 S.W.3d 486, 489-90 (Tex. App.-Dallas2009, no pet.); Omaha, 246 S.W.3d at 281-84; Christus Health v. Beal, 240 S.W.3d 282, 287-89 (Tex.App.-Houston [1st Dist.] 2007, no pet.); Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 774-75(Tex. App.-Corpus Christi 2006, pet. denied). But see Emeritus Corp. v. Highsmith, 211 S.W.3d 321,328 (Tex. App.-San Antonio 2006, pet. denied) ("[A] claim may be a 'health care liability claim' underthe safety definition even if it does not 'directly relate[] to healthcare.').

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in general would allow it to reach. 80 The second conclusion is based onthe addition of the phrase "directly related to health care" to Chapter 74'sdefinition of "health care liability claim."s'8 But, upon closer inspection ofthese two conclusions, it is not so clear that the legislature intended toencumber the word "safety" with "directly related to health care" within itsdefinition of "health care liability claim."' 8 2

A. Did the Legislature Intend for Chapter 74 to Have a Broad or NarrowReach?

The first appellate court to interpret Chapter 74's safety ambiguity wasthe Thirteenth Court of Appeals in Corpus Christi with Valley BaptistMedical Center v. Stradley. In Stradley, the plaintiff, Margaret Stradley,sought medical assistance for weight, hypertension, and mobility issues shehad been experiencing. Her doctor "prescribed" her to exercise on atreadmill at the hospital's wellness center.' 85 While Stradley was walkingon the treadmill, it accelerated rapidly.'86 Although Stradley pulled theemergency stop cord, it did not stop.'87 She sued the hospital for theinjuries she sustained from her fall from the treadmill.'8 8 The hospitalcontended that Chapter 74 applied to Stradley's claim because the word"safety" within its definition of "health care liability claim" means that"every safety claim against a health care provider or physician [is a] healthcare liability claim." 89 The court disagreed, holding that, within thedefinition of "health care liability claim," the phrase "directly related tohealth care" modifies the word "safety." 90 The court concluded that thelegislature could not have meant for all claims against a health care providerto fall within Chapter 74's ambit.' 9' It stated, "holding otherwise andfinding all safety claims against health care providers or physicians to behealth care liability claims regardless of whether they directly relate tohealth care, would be an arbitrary and legislatively unauthorized expansionof the health care liability statute." 9 2 Most of the appellate courts that have

180. E.g., Stradley, 210 S.W.3d at 775; see discussion infra Part VII.A.181. E.g., Beal, 240 S.W.3d at 289; see discussion infra Part VII.B.182. See discussion infra Parts VII.A-B.183. Stradley, 210 S.W.3d at 770.184. Id. at 772.185. Id.186. Id.187. Id.188. Id.189. Id. at 773.190. Id. at 775.191. Id.192. Id.

2011] 1271


interpreted Chapter 74's safety ambiguity have followed the Stradleycourt's reasoning.193

While the Stradley court's conclusion about the legislature's intent isconsistent with the Texas Supreme Court's reasoning in Diversicare andMarks, it may be too narrow. This is because the Stradley court did notconsider the events leading up to the enactment of Chapter 74 and thereasons for Chapter 74's modified definitions. Specifically, it is clear thatthe legislature modified the language within the definition of "health careliability claim" so that Chapter 74 would apply to more claims.194 Forexample, as noted earlier, the legislature expanded the term "health careprovider" by employing the word "including" in its definition, therebyavoiding an interpretation that the list of health care entities described wasan exhaustive list.195 Additionally, one appellate court in Texas hasconcluded that the legislature intended for Chapter 74 to apply to more thanjust causes of actions brought by patients.'96 By using the word "claimant"instead of Article 4590i's word "patient," the Dallas appellate court readChapter 74 to expand its reach to cover visitors of patients.'97 By looking atChapter 74 from this perspective, it is not unreasonable to conclude that thelegislature did intend for "all safety claims against health care providers orphysicians to be health care liability claims."l 98 In fact, because thelegislature enacted Chapter 74's provisions to decrease the costs for healthcare providers in order that those costs not pass to patients, it follows thatmore claims subject to Chapter 74 translates into lower costs to health careproviders, and in turn, patients.199 This would seem aligned with one of thelegislature's stated goals behind Chapter 74: to "make affordable medicaland health care more accessible and available to the citizens of Texas."200

Furthermore, proponents of tort reform have lauded the success ofChapter 74, citing decreasing medical malpractice insurance rates andincreasing availability of doctors as indications that Chapter 74's provisionsare working according to the legislature's design.201 If these accolades have

193. See sources cited supra note 179.194. See discussion supra Part Il.B.195. See discussion supra Part UI.B.1.196. See source cited supra notes 120-22.197. See source cited supra notes 120-22.198. See Diversicare Gen. Partner v. Rubio, 185 S.W.3d 842, 861 n.4 (Tex. 2005) (Jefferson, C.J.,

concurring) (reading Chapter 74's definition of health care liability claim as "requiring only that claimsfor 'professional or administrative services' be 'directly related to health care.').

199. Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11 (a)(8), 2003Tex. Gen. Laws 847, 884.

200. Id. § 10.11(b)(5).201. See generally Wallach & Birdwell, supra note 40, at 53-69 (arguing that H.B. 4, five years

after its enactment, is successfully accomplishing the legislature's goals of decreasing medicalmalpractice insurance rates and increasing patient access to health care in Texas). But see Sweeney &Perdue Jr., supra note 40, at 50-52 (contending that no "crisis" existed prior to H.B. 4, and after thepassage of H.B. 4, the number of doctors and availability of health care to Texans did not increase).

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merit, one logical conclusion is that the more claims subject to Chapter 74,the more likely the legislature's intent behind Chapter 74 will prevail. Thisreasoning is certainly in line with the legislature's goal of addressing the"medical malpractice insurance crisis," and it stands contrary to theStradley court's conclusion that interpreting the safety ambiguity to meansafety in general is an "arbitrary and legislatively unauthorized expansion ofthe health care liability statute." 20 2

The argument against this premise was outlined by then-TexasSupreme Court Justice Harriet O'Neill in her dissent in Diversicare.20 3

analyzing Article 4590i's reach, she cautioned that an overly broadinterpretation-that is, interpreting the safety ambiguity to mean safety ingeneral-would thwart the legislature's goal of reducing medicalmalpractice insurance rates.2 04 This is because health care providers carrytwo types of insurance policies. 205 The first type is a general liability policydesigned to cover ordinary negligence.20 6 The second type is a malpracticepolicy, which covers "obligations arising from the rendering of professionalservices."207 Thus, Justice O'Neill reasoned that if a claim alleges a breachof accepted standards of care for health care providers, then the malpracticepolicy, rather then the general insurance policy, applies.2 08 Because of thisoutcome, "malpractice insurers benefit when a claim is characterized asordinary negligence, and general-liability insurers benefit when a claim ischaracterized as a health care liability claim."209 Based on these findings,Justice O'Neill described the problem that arises:

Consequently, the adoption of an overly broad interpretation of "healthcare liability claim" could also hinder the Legislature's goal of ensuringthat medical malpractice insurance is available at a reasonable cost: ifcourts sweep even ordinary negligence claims into the ambit of [Article4590i], then malpractice insurers may end up covering more of those

202. See Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5),2003 Tex. Gen. Laws 847, 884; Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 775 (Tex. App.-Corpus Christi 2006, pet. denied). Certainly, some critics of the 2003 tort reform measures wouldagree-albeit sarcastically-that the legislature, in fact, intended for the safety ambiguity to have abroad, sweeping effect. See Sweeney & Perdue Jr., supra note 40, at 42 ("In 2003 the combined forcesof the insurance, medical and tort reform lobbies succeeded in destroying access to the courts for largesegments of the Texas population. The Republican hegemony, with control of the offices of Speaker ofthe House, Lt. Governor and Governor, prevented any meaningful dialogue or compromise on theenactment of all of the industry's wishes."). But see Nixon, supra note 65, at 15 (describing theextensive legislative history behind H.B. 4 and asserting that "[h]ouse members from both partiessupported the strong reforms and passed HB4").

203. Diversicare, 185 S.W.3d at 861 (O'Neill, J., dissenting).204. Id at 862.205. Id206. Id207. Id208. Id209. Id

2011] 1273


claims. Malpractice insurance rates would then continue to rise as thoseinsurance policies are required to cover claims that were not contemplatedunder the insurance contracts.210

While Justice O'Neill's analysis is correct in that medical malpracticerates may increase if the "health care liability claim" definition is construedbroadly, her conclusion is based on a flawed assumption. The problem withJustice O'Neill's reasoning is that it is based on the assumption that whenmedical malpractice insurance rates increase, general liability insurancerates remain the same. But if more claims are swept within the definition of"health care liability claim," then fewer claims will fall under the generalliability insurance policy. 2 1 1 Fewer claims mean that general liabilityinsurance carriers are exposed to less risk, which can in turn lead to lowerinsurance premiums.2 12 The net result, then, is that medical malpracticeinsurance premiums may increase, but they will be offset by decreasinggeneral liability insurance premiums.213 Thus, health care providers are noworse off financially, which means the savings enjoyed from Chapter 74'sprotections will continue to pass on to patients in Texas.2 14

The competing theories about the scope of the legislature's intentreveal the complexity involved in interpreting ambiguous statutorylanguage. In addressing this complexity as it applies to the safetyambiguity, the Texas appellate courts have not based their interpretationssolely on the legislature's purpose in enacting Chapter 74.215 They havealso gleaned the legislature's intent by comparing Article 4590i andChapter 74.216

B. Changes from Article 4590i to Chapter 74 as an Indication ofLegislative Intent

Because of the uncertainty associated with speculating about thelegislature's intent when it enacted Chapter 74, some Texas appellate courtshave found another way to glean legislative intent: tracking the changesfrom Article 4590i to Chapter 74.217 Indeed, the Code Construction Act

210. Id. at 863.211. See id. at 862.212. See In re Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 659 (Tex. 2005) (stating that

insurance premiums "are a function of calculated risk").213. See Diversicare, 185 S.W.3d at 862 (O'Neill, J., dissenting).214. See Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(6)-

(9), 2003 Tex. Gen. Laws 847, 884.215. E.g., Valley Baptist Med. Ctr. v. Stradley, 210 S.W.3d 770, 775 (Tex. App.-Corpus Christi

2006, pet. denied) (analyzing the grammar of Chapter 74's definition of "health care liability claim").216. E.g., Christus Health v. Beal, 240 S.W.3d 282, 287-89 (Tex. App.-Houston list Dist.] 2007,

no pet.) (discussing the differences in the safety ambiguity between Article 4590i and Chapter 74).217. See Omaha Healthcare Ctr. v. Johnson, 246 S.W.3d 278, 281-84 (Tex. App.-Texarkana 2008,

pet. filed).

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encourages this practice, stating, "[i]n construing a statute, whether or notthe statute is considered ambiguous on its face, a court may consider amongother matters the ... common law or former statutory provisions, includinglaws on the same or similar subjects."2 18

Applying this analysis to the safety ambiguity, Texas courts have beenquick to point out Chapter 74's added phrase, "directly related to healthcare," as an indication that the legislature intended for "safety" to bemodified by "directly related to health care."219 In fact, Justice O'Neill, inher dissent in Diversicare, cited Chapter 74's added language to justify herposition that Article 4590i's safety ambiguity should be narrowlyinterpreted.220 In reference to Chapter 74, she stated, "[w]hen [thelegislature] recently amended the definition of 'health care liability claim,'[it] clarified that claims falling under the statute must relate to the actualprovision of health care."22' But Chief Justice Jefferson was unconvincedwith Justice O'Neill's conclusion.222 In a footnote in his concurrence inDiversicare, he stated that, if Justice O'Neill's reasoning were adopted,then the phrase "directly related to health care" applies to the entirepreceding passage-that is "accepted standards of medical care, or health

,223care, or safety." Based on this reading, a health care liability claimwould include an assertion of a "departure from accepted standardsof... health care . .. directly related to health care." 22 4 Chief JusticeJefferson concluded, "[t]o avoid this redundancy, I read the amended statuteas requiring only that claims of 'professional or administrative services' be'directly related to health care."' 2 25

The disagreement between Chief Justice Jefferson and Justice O'Neillrepresents the fundamental dilemma that arises when considering what thelegislature intended when it included additional language to Chapter 74'sdefinition. Did the court add "directly related to health care" to modifyonly "professional or administrative services" or "safety or professional oradministrative services"? 226

While it may sound redundant, the argument favoring the notion thatthe legislature intended for "directly related to health care" to modify only"professional or administrative services" turns on the very fact that thelegislature sought to bring in "professional or administrative services"

218. TEX. Gov'T CODE ANN. § 311.023(4) (West 2005).219. See sources cited supra note 179.220. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 867 (Tex. 2005) (O'Neill, J.,

dissenting).221. Id.222. See id. at 861 n.4 (Jefferson, C.J., concurring).223. Id.224. Id.225. Id.226. See Christus Health v. Beal, 240 S.W.3d 282, 287-89 (Tex. App.-Houston [1st Dist.] 2007,

no pet.) (discussing the differences in the safety ambiguity between Article 4590i and Chapter 74).

2011] 1275


within the Chapter 74's ambit.227 The legislature's desire to add the phraseinto the definition arose out of an appellate court ruling that held thatArticle 4590i did not apply when a claim asserted that a hospital negligentlycredentialed a physician.228 Because the legislature did not want thisholding to extend to claims for negligently staffing or equipping a facility-that is, the legislature did not want these claims to fall outside the definitionof "health care liability claim"-the legislature added the "professional oradministrative services" phrase to Chapter 74's definition.229 Michael S.Hull et al. explained how the legislature wrestled with this term:

The House version of health care liability claim included "professional oradministrative" decisions made by a health care provider, such as policieson facility staffing or utilization of equipment; it also provided that analleged action or omission would fall within the new law if it was "arisingout of or related to" the treatment of a patient. The Senate versionremoved both of the new phrases: "professional or administrativeservices" and "arising out of or related to." In Conference Committee,however, the phrase "professional or administrative services" was addedback, but was narrowed in scope, affecting only those services "directlyrelated to health care."230

Thus, it is clear that, when the legislature contemplated adding the phrase"directly related to health care," it did so only within the context of thephrase "professional or administrative services." 231 Based on these facts, itfollows that absent the addition of "professional or administrative services,"the phrase "directly related to health care" would not have been similarlyadded. Thus, the legislature had no intention of applying the phrase"directly related to health care" to the word "safety" within the definition.232

On the other hand, the argument that the legislature intended for"directly related to health care" to apply to "safety" is based on the rules of

23grammar.233 In the transition from Article 4590i to Chapter 74, thelegislature not only included additional words, it also included additionalpunctuation-specifically, commas.234 The Court of Appeals at Texarkanatracked these changes in Omaha Healthcare Center, L.L.C. v. Johnson andconcluded that the inclusion and placement of the commas indicate the

227. See Hull et al., Part Three, supra note 19, at 176-77.228. See Rose v. Garland Cmty. Hosp., 87 S.W.3d 188, 194 (Tex. App.-Dallas 2002), rev'd, 156

S.W.3d 541 (Tex. 2004).229. See Hull et al., Part Three, supra note 19, at 176-77.230. Id. at 177 (citations omitted) (emphasis added).231. Id.232. See id.233. See Omaha Healthcare Ctr. v. Johnson, 246 S.W.3d 278, 281-83 (Tex. App.-Texarkana 2008,

pet. filed).234. Compare Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 1.03(a)(4) (repealed 2003), with

TEX. Civ. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2011).

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legislature's intent that "directly related to health care" modifies"professional or administrative services" and "safety." 23 5 In Omaha, thecourt addressed the safety ambiguity in determining whether the plaintiff'sclaim for a spider bite at the defendant's facility constituted a health careliability claim.23 6 In applying the rules of grammar, the court noted thatChapter 74's definition of "health care liability claim" included commaswhere Article 4590i's definition did not: after the words "medical care" and"health care." 237 Thus, the Chapter 74's departure phrase reads thefollowing way: "departure from accepted standards of medical care, orhealth care, or safety or professional or administrative services directlyrelated to health care ... 238 The court pointed out the fact that a commais missing after the word "safety." 239 Without the comma after "safety," thecourt determined that "safety" and "professional or administrative services"should be "read as one category." 24 0 This conclusion avoids the redundantreading that Chief Justice Jefferson sought to avoid in his footnote inDiversicare. 24 But the court conceded that reading the entire phrasepreceding "directly related to health care" as "one category" is not the onlycorrect way of interpreting Chapter 74's use of commas.24 2 The courtstated, "some grammarians disagree that the penultimate entry in a seriesshould be followed by a comma., 2 43 In resolving this conflict, the courtreasoned that "when list elements themselves contain two or more items,the 'last two elements are muddled if the comma is omitted."244 Becausethe definition of "health care liability claim" employs a list consisting ofmore than two items, and because a comma is omitted after "safety," thecourt concluded that the legislature intended for "directly related to healthcare" to modify the joined phrase "safety or professional or administrativeservices."24 5

In sum, while legislative intent can serve as a useful tool ininterpreting ambiguous statutory language, it can also create moreambiguity. In the case of Chapter 74, legitimate arguments exist thatsupport both a narrow and broad interpretation of the safety ambiguity. Asa result, it is incumbent upon the legislature to clarify this ambiguouslanguage.

235. Omaha, 246 S.W.3d at 283.236. Id at 280.237. Id. at 282-83.238. § 74.001(a)(13).239. Omaha, 246 S.W.3d at 282.240. Id. at 283 (citing BRYAN A. GARNER, GARNER'S MODERN AMERICAN USAGE 654 (2003)).241. See supra notes 222-25 and accompanying text.242. Omaha, 246 S.W.3d at 282.243. Id. (citing GARNER, supra note 240, at 654).244. Id. at 283 (citing GARNER, supra note 240, at 303-04).245. Id.

2011] 1277


VIII. THE PRESCRIPTION: CURES FOR CLARIFYING THE "SAFETYAMBIGUITY"

The following solutions suggest ways in which the legislature canaddress the safety ambiguity. The first "solution" is not conditioned onwhether the legislature intended a broad or narrow interpretation of thesafety ambiguity; rather, it leaves the interpretation to the courts. Thesecond and third solutions, however, will clarify the safety ambiguity,depending on the legislature's intent. The legislature can follow the secondsuggestion if it desires the safety ambiguity to take on a broadinterpretation. The third suggestion offers a modification that will result ina narrow interpretation of the safety ambiguity. These solutions are simplemodifications, but they will result in certainty and consistency. The endresult is a system that the legislature envisioned when it enacted Chapter 74in 2003.246

A. Leave the Definition Unchanged

Although it is not technically a solution, the legislature can choose toleave the definition of "health care liability claim" unchanged. This willplace the interpretation of the safety ambiguity squarely within the power ofthe courts. The argument in favor of this action is that a majority of theappellate courts in Texas have already interpreted the safety ambiguity inthe same way: "directly related to health care" modifies "safety." 24 7 Inconsidering a cost-benefit analysis, the cost of the legislature's time andeffort in passing a bill that affirms what most of the Texas appellate courtshave already concluded outweighs the marginal effect that a clarificationwill have on any disagreeing appellate courts.

On the other hand, the argument against leaving the definitionunchanged is that the Texas Supreme Court has not ruled on the issue, andthe existence of at least one appellate court disagreement about theinterpretation of the safety ambiguity means the issue is still unsettled.24 8

Additionally, the fact that a disagreement exists shows that the definition,left unchanged, is not wholly unambiguous. The legislature should alsoconsider that, if the Texas Supreme Court refuses to rule on the issue, thesafety ambiguity will remain unsettled throughout Texas, which can lead toinconsistent and unfair results. This inconsistency might cause insurers to

246. See Medical Malpractice & Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(l)-(7), 2003 Tex. Gen. Laws 847, 884.

247. See sources cited supra note 179.248. See Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 327 (Tex. App.-San Antonio 2006, pet.

denied).

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question their exposure to risk, which could lead to increasing insurancerates for health care providers.249

In sum, leaving the definition unchanged frees up time and energy forthe legislature to focus on other pressing issues of state concern. But byplacing the interpretation in the power of the courts, the legislature runs therisk of an interpretation that stands contrary to the legislature's intent ofChapter 74. By .affirmatively addressing the safety ambiguity, thelegislature will have more control and certainty over the interpretation ofthe safety ambiguity.

B. Clarify a Broad Interpretation of the Safety Ambiguity

If the legislature intends for "directly related to health care" to modifyonly "professional or administrative services" and not "safety," then onesimple solution is to precede "directly related to health care" with the words"that are" and change the sentence structure of the definition of "health careliability claim" to read the following way:

"Health care liability claim" means a cause of action against a health careprovider or physician for treatment, lack of treatment, or other claimeddeparture from accepted standards of medical care, or health care, orprofessional or administrative services that are directly related to healthcare, or safety, which proximately results in injury to or death of aclaimant, whether the claimant's claim or cause of action sounds in tort orcontract.250

This solution makes it clear that "directly related to health care" does notmodify "safety." One problem that might arise, however, is that courts willinterpret this definition the same way the Texas Supreme Court interpretedArticle 4590i's definition in Diversicare and Marks.2 5 1 In both cases, thecourt determined that a claim asserts a departure from "accepted standardsof safety" only if "safety" is directly related to health care, despite the factthat the term "directly related to health care" was not included in Article4590i's definition.25 2

To avoid this situation, the legislature can divide the definition of"health care liability claim" into two subparts. Subpart (A) uses the revised

249. See discussion supra Part V.250. Cf TEx. Civ. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2011) ('Health care liability

claim' means a cause of action against a health care provider or physician for treatment, lack oftreatment, or other claimed departure from accepted standards of medical care, or health care, or safetyor professional or administrative services directly related to health care, which proximately results ininjury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort orcontract.") (emphasis added).

251. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 855 (Tex. 2005); Marks v. St. Luke'sEpiscopal Hosp., 319 S.W.3d 658, 664 (Tex. 2010).

252. Diversicare, 185 S.W.3d at 855; Marks, 319 S.W.3d at 664.

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definition above, followed by subpart (B), which will clarify thelegislature's intent regarding the word "safety":

(B) The word "safety" within subpart (A) shall not be read to apply only tosafety claims directly related to health care, thereby limiting its scope.

If the Texas courts disagree about how to interpret the safety ambiguity, thissubsection removes all doubt. But most appellate courts have held that thelegislature never intended for the safety ambiguity to possess such a broadreach.253 Therefore, the legislature has another option to ensure a limitedreading of the safety ambiguity.

C. Remove the Word "Safety "from the Definition

In attempting to clarify that the legislature intends for "directly relatedto health care" to modify "safety," a normal reaction might be to change thesentence structure, add more words, or add punctuation marks to clarifyhow the definition should be read. But a simpler solution-albeit counterintuitive-is to completely take the word "safety" out of the health careliability claim definition. The new definition would read the followingway:

"Health care liability claim" means a cause of action against a health careprovider or physician for treatment, lack of treatment, or other claimeddeparture from accepted standards of medical care, or health care, orprofessional or administrative services directly related to health care,which proximately results in injury to or death of a claimant, whether theclaimant's claim or cause of action sounds in tort or contract.

This solution is based on the assumption that a claim for the "departurefrom accepted standards of . .. safety . . . directly related to health care" isinherently a claim for the "departure from accepted standards of ... healthcare."254 Justice Johnson affirmed this assumption in his concurrence inMarks, stating the following:

If a health care provider furnishes unsafe materials or creates an unsafecondition as an integral and inseparable part of a patient's health care ortreatment, the health care provider's acts or omission would already fallwithin the category of claims based on departures from accepted standardsof health care and there would be no need for the Act to include the word"safety." 255

253. See sources cited supra note 179.254. Cf TEX. Civ. PRAC. & REM. CODE ANN. § 74.001(a)(13) (West 2011).255. Marks, 319 S.W.3d at 673.

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Put this way, it is clear that a safety claim directly related to health care issimply one type of claim that falls within the phrase "departure fromaccepted standards of . .. health care ... 256 Thus, the word "safety" isunnecessary and redundant.257

Applying the new definition to cases already decided reveals that thenew definition would yield the same results. For example, consider twocases implicating the safety prong within the definition of health careliability claim: Christus Health v. Beal and Espinosa v. Baptist HealthSystem. 258

In Beal, the plaintiff was a resident of a drug and alcohol treatmentcenter.259 One night while he was asleep, the bed the plaintiff was sleepingin collapsed and caused him injury.260 The First District Court of Appealsin Houston first interpreted the safety ambiguity narrowly, then turned tothe issue of whether the defective bed implicated a "departure fromaccepted standards of . .. safety . .. directly related to health care." 261 Thecourt held that the claim did not implicate the standards of safety related tohealth care, stating "[h]ere, [plaintiff] is complaining about an ordinary bedthat gave way under his weight, a circumstance that gives rise to a premisesliability claim in a health care setting that may not be properly classified asa health care liability claim." 2 62 Applying the new definition to the claim,the court's holding would not have changed. Because the court held thatthe claim was a premises liability claim, it would not have implicatedstandards of "medical care, health care, or professional or administrativeservices directly related to health care." 26 3

256. See id257. See id To be sure, the conclusion that the word "safety" is redundant and unnecessary stands

contrary to the majority's statement in Diversicare that "the Legislature's inclusion within the scope of[Article 4590i] of claims based on breaches of accepted standards of 'safety' expands the scope of thestatute beyond what it would be if it only covered medical and health care." Diversicare, 185 S.W.3d at855. But the majority's reasoning is simply unworkable with a narrow interpretation of the safetyambiguity-that is, it is impossible for a claim to assert a departure from accepted standards of safetydirectly related to health care without asserting a departure from accepted standards of health care. SeeMarks, 319 S.W.3d at 673 (Johnson, J., concurring) ("Applying the plurality's 'inseparable or integralpart of the patient's care or treatment' standard to 'safety' effectively reads safety out of the statuteinstead of properly giving it meaning as an additional category of claims."); TEX. CIV. PRAC. & REM.CODE ANN. § 74.001(a)(13) (West 2011). This is the reasoning that led Justice Johnson to read Article4590i's safety ambiguity broadly. See Marks, 319 S.W.3d at 673-74 (Johnson, J., concurring) ("[TheCourt should construe the Legislature's inclusion of 'safety' claims in [Article 4590i] as expanding thescope of health care liability claims beyond what it would be if the statute only covered medical andhealth care claims, not confining those claims to be the same as claims already coming within thestatute's coverage as health care claims.").

258. Christus Health v. Beal, 240 S.W.3d 282 (Tex. App.-Houston [1st Dist.] 2007, no pet.);Espinosa v. Baptist Health Sys., 2006 WL 2871262 (N.J.A.G. Oct. 11, 2006).

259. Beal, 240 S.W.3d at 284.260. Id.261. Id. at 289 (emphasis omitted).262. Id. at 291.263. Cf TEx. CIv. PRAc. & REM. CODE ANN. § 74.001(a)(13) (West 2011).

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In Espinosa v. Baptist Health System, the claim arose after a post-surgery patient was injured when "the 'hospital bed trapeze-patient liftdevice' [over his hospital bed] suddenly became detached as he was holdingonto it, causing him to fall back on the bed."264 The Fourth District Courtof Appeals in San Antonio held that the "trapeze bar ... was authorized aspart of Espinosa's medical care by his physician in both the physician'swritten order and the Orthopedic Surgery Initial Evaluation." 265 Because adoctor had authorized that Espinosa use the trapeze bar, the court concludedthat the failure of the equipment implicated a departure from "acceptedstandards of care for the care or treatment of Espinosa in the assembly,maintenance and use of the trapeze in question." 266 Applying the newdefinition, it is again clear that the court would have reached the sameresult. Chapter 74 defines "health care" as "any act or treatment performedor furnished, or that should have been performed or furnished, by anyhealth care provider for, to, or on behalf of a patient during the patient'smedical care, treatment, or confinement." 267 Thus, even with the word"safety" absent from the definition of "health care liability claim," the claimwould still fall within Chapter 74 because it asserts a "departure fromaccepted standards of. . . health care."268

One argument against taking out the word "safety" is that the phrase"professional or administrative services directly related to health care"should be excluded for the same reason. But the terms "safety" and"professional or administrative services" are distinguishable. Because"safety" means "free from injury," and because a claim implicates Chapter74 when it asserts a "departure from accepted standards of... healthcare . .. which proximately results in injury to or death of a claimant," asafety claim directly related to health care inherently falls within thedefinition.2 69 On the other hand, "professional or administrative services"refers to the satisfaction of statutory requirements so that a health careprovider can remain licensed, accredited, and certified to participate infederal or state health care programs.2 70 Not all of the these statutoryrequirements implicate the term "health care" as it is used in Chapter 74.271Thus, "professional or administrative services directly related to healthcare" needs to remain in the definition, while the word "safety" does not.272

The upshot of the new definition is that parties will not waste timequarreling over the interpretation of the safety ambiguity. This will save

264. Espinosa, 2006 WL at * 1.265. Id. at *4.266. Id.267. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(aX10) (West 2011).268. § 74.001(a)(13).269. Id.270. See § 74.001(a)(24).271. See supra notes 227-32 and accompanying text.272. See supra notes 227-32 and accompanying text.

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time and effort for judges and attorneys alike, and it will bring into focusthe more important issue in resolving Chapter 74's applicability-whetherthe underlying claim relates to health care.

IX. CONCLUSION

When H.B. 4 passed in 2003, it was clear that the legislature intendedfor Chapter 74's reach to extend further than Article 4590i's reach.2 73

Indeed, Chapter 74 was established precisely for the purpose of addressingArticle 4590i's shortfalls. 274 Although many of its provisions anddefinitions have proven successful in carrying out this mission, Chapter74's definition of "health care liability claim" has fallen short. 275 Theadditional language included in Chapter 74's definition has done nothingbut create more confusion.2 76 And despite the Texas courts' best effort,extracting legislative intent for the purpose of interpreting ambiguouslanguage has proven complex and time-consuming.27 7

The good news is that simple solutions exist.2 78 Depending on whatthe legislature intends for the safety ambiguity, it can solve the dilemma bysimply adding a few words to the definition or taking a single word out.27 9

Although debate may arise regarding the legislature's decision on whichsolution to choose, the point is that the legislature needs to make a decision.

Although medical malpractice horror stories will never cease to exist,the legislature has the ability to quell any safety ambiguity horror storiesthat might arise in the near future. If uncertainty continues to prevail withinthe health care liability claim arena, Chapter 74 might end up in the sameposition as Article 4590i-that is, powerless to address the problems it was

280designed to prevent.

273. See discussion supra Part H.B.274. See discussion supra Part H.275. See discussion supra Part IV.276. See discussion supra Part IV.277. See discussion supra Part VII.278. See discussion supra Part VIII.279. See discussion supra Part VIII.280. See discussion supra Parts II, V.

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Documents

SCALPEL, PLEASE: WHY THE DEFINITION OF HEALTH CARE ... · remain unsettled, and its case law will continue to fracture.13 The end result of this confusion is that the ambiguous definition